And more!

It’s been another busy week at Chez Biden. I will dive right in.

NLRB Acting General Counsel Peter Ohr withdraws 12 memos by former GC Peter Robb. Of course, the withdrawn General Counsel memoranda were relatively employer-friendly. The memoranda withdrawing the old memoranda are here and here. The following are two high — er, lowlights:

Handbook rules. This one breaks my heart. Peter Robb, who was General Counsel for the National Labor Relations Board during the Trump Administration (and fired by President Biden before his term expired), issued a memorandum on employee handbook policies and when they did and didn’t interfere with employees’ rights under Section 7 of the National Labor Relations Act. That memorandum is no more, which means that employers (even non-union employers) will have to be very careful in drafting policies related to certain “hot topics.” I blogged about Mr. Robb’s memorandum in 2018. Read all about it, and weep.

Right of employees who are not union members to object to use of union dues for political and other activities. Acting GC Ohr rescinded two Robb memoranda about the rights of non-union members in agency shops.

In an agency shop in a state that does not have a right-to-work law, employees may not be required by a collective bargaining agreement to join a union or pay dues, but they can be required to pay financial “core” fees to the union related to collective bargaining and other union representation activities. As non-members, financial core fee payers are not required to pay for political and other activities in which the union may engage. They are also not subject to union discipline or fines. (Ten-gallon hat tip to my colleague David Phippen for making sure I got this right.)

One withdrawn memorandum required unions to provide adequate notice to non-members about their rights to not be charged for fees related to political and other activities. The other withdrawn memorandum required unions to provide itemized, detailed information in response to a fee objection case. This latter  memorandum also required unions to treat lobbying expenses as “non-chargeable” and said that no amount of lobbying expense was “de minimis” (meaning too small to be bothered about).

Boston Mayor Marty Walsh kills it at confirmation hearing. Mayor Walsh is President Biden’s nominee for Secretary of Labor, and his Senate confirmation hearing took place yesterday. It appears that he did very well, and his Committee vote is scheduled to take place next Thursday, February 11. For you political nerds, the whole hearing of approximately two and a half hours is available on C-SPAN. Here’s an encouraging clip in which the Mayor says that he will try to foster cooperation between labor and business:

Very nice! (Of course, Mayor Walsh also favors raising the federal minimum wage to $15 an hour, but we’ll worry about that later.)

OSHA issues new COVID guidance. I can’t improve on what our crack OSHA team wrote this week about the new guidance, so I’ll just link to their bulletin. Please pay special attention to the part where they say that an Emergency Temporary Standard related to COVID is expected by March 15. Oh, and Bloomberg Law reported yesterday that the Agency is back to publicizing big OSHA penalties to the media and the public.

DOL seeks to delay effective dates of Trump-era “midnight” wage and hour regulations. Regulations related to independent contractors and tip-pooling were issued during the last days of the Trump Administration. Now the Biden Administration has taken formal action to suspend the effective dates of these regulations for 60 days (the Federal Register notices, published this morning, are here and here). As proposed, the effective date of the independent contractor regulations would be May 7, and the effective date of the tip-pooling regulations would be April 30. In fact, neither set of regulations is likely to see the light of day. The DOL is seeking public comment on both suspensions. Instructions for commenting are available at the links above.

Trump appointee sues Biden Administration for “unlawful discharge.” No, the plaintiff is not Peter Robb — at least, not yet. This time, it’s Roger Severino, who was formerly with the U.S. Department of Health and Human Services Civil Rights Division but was recently appointed by President Trump to a three-year term on the Council of the Administrative Conference of the United States. Mr. Severino took office four days before President Biden’s inauguration. According to his lawsuit, Mr. Severino received a letter on Monday requesting that he resign and telling him that if he didn’t quit by 5 p.m. Tuesday, he would be fired. On Wednesday, Mr. Severino filed suit, making essentially the same legal arguments that we discussed here last week about Mr. Robb. This will be an interesting lawsuit to watch, and watch it we will.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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